(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records, on the file of the first respondent in ATA no.848(13)2008 dated 13.04.2010 and quash the same.)
1. The instant writ petition has been filed challenging the order dated 13.04.2010 passed by the first respondent in ATA No.848(13)2008.
2. According to the petitioner they were voluntarily brought under the coverage of the Employees Provident Funds and Miscellaneous Provisions Act, 1952( hereinafter referred to as “the E.P.F and M.P Act 1952”) from 02.03.1994 and they have not remitted EPF contributions regularly from 1994 to 1998 and filed returns thereof to the second respondent. According to the petitioner, inspection squad comprising of two Enforcement Officers of E.P.F Organisation made their first visit to the business premises of the petitioner on 26.03.2007 and made observations that 51 temporary employees were found not enrolled from the date of their eligibility. According to the petitioner, inspection squad directed the petitioner to enroll all the 51 temporary employees and submit the challans for remittance made along with the returns. According to the petitioner, they have submitted a reply dated 30.07.2008 to the notice dated 09.07.2008 issued by the second respondent under Section 7-A of the E.P.F and M.P. Act 1952 stating that they had remitted a sum of Rs.5,75,537/- for the period from March-2007 to February-2008 and challans were submitted. In the same reply dated 30.07.2008, the petitioner had stated that 51 persons who were found to be not enrolled, were all apprentices and not covered under the E.P.F and M.P Act 1952, as per the standing orders issued by the Labour Department in favour of the petitioner insofar as apprentices are concerned.
3. By an order dated 05.08.2008 under Section 7A of the E.P.F and M.P.Act 1952, the second respondent has stated that a sum of Rs.14,40,154.90/- is due and payable by the petitioner towards 194 employees, for which, EPF contributions were not paid by the petitioner. According to the petitioner, a conclusion was arrived at by the second respondent only based on the Inspection Report – part II, which according to them, deliberately prepared by two Enforcement Officers of the second respondent on 02.06.2008. According to the petitioner, the said Inspection Report is an incorrect report. Aggrieved by the order dated 05.08.2008 passed by the second respondent under Section 7-A of the E.P.F and M.P. Act 1952, the petitioner filed a review petition under Section 7B of the E.P.F and M.P Act 1952 before the second respondent on 24.09.2008. The second respondent passed orders in the review petition on 06.11.2008 rejecting the review petition. Aggrieved by the dismissal of the review petition filed under Section 7B of the E.P.F and M.P Act 1952, the petitioner filed an appeal before the E.P.F Appellate Tribubal, New Delhi under Section 7(i) of the E.P.F and M.P Act 1952, to annul the orders of the second respondent passed on 05.08.2008 and 06.11.2008. The Employees Provident Fund /Appellate Tribunal also dismissed the appeal filed by the petitioner/ Management on 13.04.2008 in ATA No.848(13)2008. Aggrieved by the same, the instant writ petition has been filed.
4. A Counter affidavit has been filed by the second respondent stating that all the 194 employees are not apprentices but they are all regular employees of the petitioner. They have also stated that adequate opportunity was granted by the second respondent as well as by the first respondent/ Tribunal before orders were passed against the petitioner. According to the respondents, the petitioner having failed to establish before the authorities below that all the apprentices are not regular employees and the authorities below having considered all the documentary evidence available on record, the petitioner/management cannot now seek to reverse the findings of the authorities below as there is no perversity in the orders passed by the authorities below.
5. Heard Mr.N.Sudalaimuthu, learned counsel appearing for the petitioner and Mr. N.Murali Shankar, learned Counsel for the respondents.
6. The learned counsel for the petitioner would submit that since there are standing order in favour of the petitioner for non payment of E.P.F contributions, they are not liable to pay the E.P.F contributions to the apprentices. He drew the attention of this Court to the standing order issued in favour of the petitioner by Labour Department and submitted that even though the same was produced the first respondent/Tribunal had not considered the same on the ground that they are all not certified copies. Further, he would contend that the documents like salary certificate, registration certificate and other documents were not duly considered by the respondents before passing the impugned orders. Further inspection took place in the year 2006, but the inspection report was of the year 2008, which according to the learned counsel for the petitioner was not given to the petitioner.
7. Per Contra, the learned counsel for the respondents would submit that the petitioner, having participated in the proceedings before the authorities below and having been afforded sufficient opportunity to place all evidence available to him under law to disprove the claim of the second respondent, cannot not now raise the same grounds before this Court under Article 226 of Constitution of India as there is no perversity in the findings of the authorities below. He would further submit that the second respondent is the appropriate Department to determine the dues payable by the petitioner under Section 7-A of E.P.F and M.P Act 1952, which was also reviewed by the petitioner under Section 7-B and the same was also dismissed by the second respondent. Further, he would contend that the first respondent/Tribunal has also confirmed the orders passed by the second respondent under Section 7-A of the E.P.F and M.P Act 1952 as well as under Section 7-B of the E.P.F and M.P Act 1952. According to him only after inspection, the second respondent found that the petitioner did not pay the E.P.F contributions for 194 employees. According to him, they are not apprentices but are regular employees of the petitioner.
8. The objective of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 is to protect the interest of employees in factories and other establishments. The purpose of the enactment of the said Act is to cultivate the spirit of saving amongst the workers regularly. It is therefore a beneficial legislation to protect the interest of the employees. Therefore, this Court will have to necessarily interpret the provisions only in favour of the employees whenever there requires any interpretation.
9. In the instant case, the petitioner contended that the employees, for whom contributions were not paid, are all apprentices, whereas it is the case of the second respondent that they are all regular employees of the petitioner. The second respondent while determining the amount under Section 7-A of the E.P.F and M.P. Act 1952, has given sufficient opportunity to the petitioner to raise all objections available to him under law. To avoid payment of the E.P.F contributions for the concerned persons, they participated in the enquiry and produced records to disprove the claim of the second respondent and the same was rejected. The second respondent, under the order dated 05.08.2008 passed under Section 7-A of the E.P.F and M.P Act 1952, determined the contributions available to 194 employees, out of which, the petitioner claims that 51 employees are temporary employees and the remaining are apprentices. It is impossible for the factory to have more number of apprentices than regular employees, that too about in the ratio 1:3. Further, there is no dispute regarding the number of persons, who were working at the time of inspection by the enforcement wing officials in the factory premises of the petitioner in the year 2006.
10. While determining the amount under Section 7-A of the E.P.F and M.P Act 1952, the second respondent has considered all the docum
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entary evidence placed before him and only thereafter has determined the amount. Aggrieved by the determined amount under Section 7-A of the E.P.F and M.P Act 1952, the petitioner has also preferred review under Section 7-B of E.P.F and M.P. Act 1952 and the same was also dismissed. Aggrieved by the same, the petitioner has preferred the appeal before the first respondent/ Tribunal, which also came to be dismissed on 13.04.2010 and the same has been challenged in this writ petition. 11. This Court has perused the impugned orders and does not find any infirmity in the impugned orders Under Section 226 of the Constitution of India, this Court cannot re-appreciate the evidence when there is no perversity as it is not a Court of appeal. There is no perversity in the impugned order and therefore there is no merit in this writ petition. 12. Accordingly, this Writ Petition is dismissed. No Costs.